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    The Lawletter Blog

    CONSTITUTIONAL LAW: Requiring Major Political Party Affiliation for State Court Judges Runs Afoul of First Amendment Right of Association

    Posted by John M. Stone on Wed, Jun 19, 2019 @ 10:06 AM

    The Lawletter Vol 44 No 4

    John Stone—Senior Attorney, National Legal Research Group

                In Delaware, a judicial nominating commission, with members balanced between the two major political parties, provides recommended candidates to the Governor for the appointment of judges to the state courts. When a position becomes open, the commission gives public notice of the position, including the major party membership required for nomination to a particular judgeship. The party membership requirement has its origins in article IV, § 3 of the Delaware Constitution, which effectively excludes all candidates for state judge positions who are not members of either the Republican or the Democratic Party.

                A Delaware resident and member of the Delaware Bar considered applying to become a state judge, but in the end, he did not apply because as an independent politically, his application would have been futile in light of the constitutional provision. Nonetheless, first a United States district court and then a federal appellate court found that he had standing to challenge the limitation on judicial candidates to the two major political parties for the Delaware Supreme Court, the Superior Court, and the Chancery Court on the ground that such exclusion of persons not members of those parties was an unjustified infringement on the plaintiff's First Amendment freedom of associationAdams v. Governor of Del., No. 18-1045, 2019 WL 1549857 (3d Cir. Apr. 10, 2019).

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    Topics: Delaware, constitutional law, John M Stone, appointment of judgeship, party membership requirement

    ESTATES: Gifts Under a Power of Attorney

    Posted by D. Bradley Pettit on Wed, Jun 19, 2019 @ 10:06 AM

    The Lawletter Vol 44 No 4

    Brad Pettit—Senior Attorney, National Legal Research Group

                The Uniform Power of Attorney Act ("UPAA") provides that

    (b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:

    (1) make outright to, or for the benefit of, a person, a gift of any of the principal's property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under Internal Revenue Code Section 2503(b) . . . and

    (2) consent, pursuant to Internal Revenue Code Section 2513, 26 U.S.C. Section 2513, [as amended,] to the splitting of a gift made by the principal's spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.

    Unif. Power of Attorney Act § 217(b), U.LA. (Westlaw current through 2017 Annual Meeting of the National Conference of Commissioners on Uniform State Laws). Read More

    Topics: estates, Uniform Power of Attorney Act, D. Bradley Pettit, authority to make a gift, personal liability

    FAMILY LAW: Modern Technology and the Definition of "Writing"

    Posted by Brett R. Turner on Wed, Jun 19, 2019 @ 10:06 AM

    The Lawletter Vol 44 No 4

    Brett R. Turner—Senior Attorney, National Legal Research Group

                One of the most common formalities required for family law agreements is that they must be in writing. At common law, premarital agreements were within the statute of frauds. The Uniform Premarital Agreements Act ("UPAA") requires that premarital agreement be both written and signed by both spouses. UPAA §§ 2, 5. Many states, by case law or statute, likewise require that divorce settlement agreements be written.  Amendments to family law agreements must also often be written.

                A generation ago, a writing requirement was easy to construe—the text of the agreement had to appear on paper. But in the 21st century, the world is increasingly paperless. It seems quite likely that the world of family law agreements will join the movement away from paper.

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    Topics: family law, Brett R. Turner, writing requirement, Uniform Electronic Transactions Act, premarital agreement

    TORTS: Government's Liability for Child Abuse by Foster Parents

    Posted by Alfred C. Shackelford III on Wed, Jun 19, 2019 @ 10:06 AM

    The Lawletter Vol 44 No 4

    Fred Shackelford—Senior Attorney, National Legal Research Group

                Can a government agency be held liable in tort when a child is abused by a foster parent? The Washington Supreme Court addressed this issue of first impression in H.B.H. v. State, 429 P.3d 484 (Wash. 2018). In that case, several children were placed in foster care with a couple who abused the children physically, sexually, and psychologically over a five-year period. For a year during that period, social workers failed to conduct mandatory in-home health and safety checks, and the agency ultimately recommended that the foster parents be allowed to adopt the children. Years later, two of the children brought a tort action against the state Department of Social and Health Services (“DSHS”).

                The DSHS argued that it owed no common-law duty because the children were not in the agency's physical custody at the time the abuse occurred. Rejecting that argument, the court concluded that a detailed statutory scheme created a special relationship between the agency and the children. The custodial relationship between the DSHS and the children gives rise to a common-law duty in accordance with Restatement (Second) of Torts § 315(b). The court found that such a special relationship exists even though the DSHS did not have actual physical custody of the children.

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    Topics: torts, Alfred C. Shackelford III, government liability, foster parent abuse, common-law duty

    WILLS: Scope of Description "Personal Effects"

    Posted by Matthew T. McDavitt on Wed, Jun 19, 2019 @ 09:06 AM

    The Lawletter Vol 44 No 4

    Matthew McDavitt—Senior Attorney, National Legal Research Group

                The phrase "personal effects" is a descriptor that commonly leads to litigation regarding its usual or intended scope. Unqualified, the word "effects" in a testamentary context generally denotes personal property of any description. Adler v. First-Citizens Bank & Trust Co., 4 N.C. App. 600, 603, 167 S.E.2d 441, 443 (1969). However, pairing the adjective "personal" with the noun "effects" expressly modifies and limits its scope:

    The adjective "personal" would be unnecessary and useless if it did not restrict the meaning of "effects," which standing alone would have covered all personalty. . . . [T]he words "personal effects" . . . [usually] cover only those articles of tangible personal property that in their use or intended use had some intimate connection with the person of the testatrix.

    Gaston v. Gaston, 320 Mass. 627, 628, 70 N.E.2d 527, 528 (1947).  Thus, "[t]he term 'personal effects' ordinarily does not include cash and property held for investment." Beasley v. Wells, 55 So. 3d 1179, 1185 (Ala. 2010); In re Estate of Stengel, 557 S.W.2d 255 (Mo. Ct. App. 1977) (the term "personal effects" meant tangible property worn or carried about the person or tangible property having some intimate relation to the person of the testatrix; the term did not include the bonds, stocks, savings and loan accounts, cash, coins, or currency).

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    Topics: wills, Matthew T. McDavitt, intended scope, personal property not bequeathed, "personal effects"

    TAX: Minimum Contacts Necessary for Taxation of Trust

    Posted by James P. Witt on Wed, Mar 20, 2019 @ 09:03 AM

    The Lawletter Vol 44 No 3

    Jim Witt—Senior Attorney, National Legal Research Group

                In Kimberley Rice Kaestner 1992 Family Trust v. North Carolina Department of Revenue, ___ N.C. App. ___, 789 S.E.2d 645, aff'd, ___ N.C. ___, 814 S.E.2d 43 (2018), cert. granted sub nom. North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, No. 18-457, 2019 WL 166876 (U.S. Jan. 11, 2019) the court addressed the issue of whether North Carolina's taxation under North Carolina General Statutes § 105-160.2 of the income accumulated by the trust in question met the minimum contacts requirement of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution where the trust's only connection with North Carolina was the residence and domicile of the beneficiary.

                The Trust, the Kaestner 1992 Family Trust, was established by Joseph Lee Rice III, with William B. Matteson as trustee. The situs of the trust was New York. The primary beneficiaries of the trust were the settlor's descendants (none of whom lived in North Carolina at the time of the trust's creation).

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    Topics: trusts, tax law, minimum contacts, taxing jurisdiction

    EMPLOYMENT LAW: When Can an Employer Require an Employee to Undergo a Medical Exam Under the ADA?

    Posted by Suzanne L. Bailey on Tue, Mar 19, 2019 @ 12:03 PM

    The Lawletter Vol 44 No 3

    Suzanne Bailey—Senior Attorney, National Legal Research Group

                Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-12117, makes it unlawful for an employer to "require a medical examination" or to "make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."  Id. § 12112(d)(4)(A). According to the Equal Employment Opportunity Commission ("EEOC"), this means that an employer should not make disability-related inquiries or require a medical examination of an employee unless the employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition." Enforcement Guidance:  Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), 5 (EEOC No. 915.002 July 27, 2000).  A recent decision from the Fourth Circuit Court of Appeals reversing a grant of summary judgment in favor of the employer illustrates the difficulties employers face in navigating the ADA rules regarding required medical examinations of employees.

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    Topics: ADA, subjective observations, business necessity, medical exam, nonmedical supervisor

    CIVIL PROCEDURE: Seeking Appellate Relief Under Mandatory Standard of Review Theory

    Posted by Charlene J. Hicks on Tue, Mar 19, 2019 @ 12:03 PM

    The Lawletter Vol 44 No 3

    Charlene Hicks—Senior Attorney, National Legal Research Group

                One potentially overused legal principle that is often recited in appellate cases is that a party waives any issues or legal theories that he or she fails to assert at the trial court level. In other words, a party generally cannot raise a new issue for the first time on appeal. Any attempt to do so will likely be rejected by the appellate court.

                Even so, an appellate attorney would do well to keep in mind that this oft-repeated principle does not apply to certain situations, including questions pertaining to the standard of review employed by the lower court. The proper standard of review that is applicable to a particular legal issue is a nonwaivable matter. See Winfield v. Dorethy, 871 F.3d 555, 560 (7th Cir. 2017), cert. denied, 138 S. Ct. 2003 (2018); Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009). Accordingly, an appellant does not forfeit a claim that the lower court failed to employ the proper standard of review “by failing to argue it” to the lower court. Sierra Club v. U.S. Dep't of Interior, 899 F.3d 260, 286 (4th Cir. 2018); see also United States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011). Similarly, the parties to a case cannot agree on or assign an incorrect legal standard of review to an issue. Sierra Club, 899 F.3d at 286.

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    Topics: civil procedure, appeal, waiver of issues not asserted, nonwaivable issue, review of lower court's ruling, mandatory standary of review issue

    EMPLOYMENT: Arbitration—“Gateway Issues”

    Posted by Nadine Roddy on Mon, Feb 4, 2019 @ 12:02 PM

    The Lawletter Vol 44 No 2

    Nadine Roddy—Senior Attorney, National Legal Research Group

                When an arbitration agreement is in effect, who decides whether an employment dispute—or any dispute for that matter—is arbitrable? The Supreme Court recently released a pair of decisions that address this issue under the Federal Arbitration Act (FAA), Henry Schein, Inc. v. Archer & White Sales, Inc., ___ S. Ct. ___, 202 L. Ed. 2d 480, 2019 WL 122164 (Jan. 8, 2019), and New Prime, Inc. v. Oliveira, ___ S. Ct. ___, 2019 WL 189342 (Jan. 15, 2019).

                Each case involved an arbitration agreement that contained a clause delegating the issue of arbitrability of disputes to an arbitrator rather than a court. The Supreme Court had previously held that such clauses are enforceable under the FAA. Rent-A-Center W., Inc. v. Jackson, 561 U.S. 63 (2010) (applying 9 U.S.C. § 2). Some courts of appeals developed an exception to this general rule, holding that a court need not grant a motion to compel arbitration under § 4 of the FAA if the argument that the underlying claim is within the scope of the arbitration agreement is "wholly groundless." These courts reasoned that such an exception would enable courts to block frivolous attempts to transfer disputes from the court system to arbitration.

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    Topics: contracts, Federal Arbitration Act, arbitration clause, Nadine Roddy, gateway issue of arbitrability, exceptions to Act

    CRIMINAL LAW:  No Constitutional Right to Engage in Bestiality

    Posted by Mark V. Rieber on Mon, Feb 4, 2019 @ 12:02 PM

    The Lawletter Vol 44 No 2

    Mark Rieber—Senior Attorney, National Legal Research Group

                In an unusual case, and one apparently of first impression, the Virginia Court of Appeals has very recently upheld the constitutionality of the state's statute prohibiting bestiality.  Va. Code Ann. § 18.2-361(A); Warren v. Commonwealth, No. 2086-17-3, 2019 WL 189386 (Va. Ct. App. Jan. 15, 2019).  The defendant in Warren was convicted of soliciting another person to "carnally know a brute animal or to submit to carnal knowledge with a brute animal" in violation of Va. Code Ann. §§ 18.2-361(A) and 18.2-29 (criminal solicitation). The evidence against the defendant included videos of the prohibited activities. The defendant argued that the bestiality statute was unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003), because the activities at issue amounted to nothing more than private sexual conduct of consenting adults. Read More

    Topics: criminal law, Mark V. Rieber, constitutionality, legitimate state interests, bestiality

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